RESEARCH STUDY AGREEMENT
This Agreement (the "Agreement") is dated as of September 24, 2001, by and
between AngioGenex, Inc., a New York corporation having an office at 000 0xx
Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000 (the "Company"), and Biocheck (the "CRO"),
located at 000 Xxxxx Xxxx, Xxxxxxxxxx, XX.
W I T N E S S E T H
WHEREAS, CRO has the scientific personnel and facilities to conduct a research
program relating to the measurements of proteins in biological samples;
WHEREAS, Company desires to fund a research program at the CRO to investigate
the potential for measurements of Id proteins in biological fluids to detect
the presence of cancer in the subjects providing the sample of the fluid;
WHEREAS, Sinfu Tzeng, Ph.D., President of Biocheck ("Xx. Xxxxx"), is interested
in participating in and overseeing such a research program to be conducted at
WHEREAS, CRO is willing to allow Xx. Xxxxx to participate in and oversee such a
research program pursuant to the terms of this Agreement;
NOW, THEREFORE, Company and CRO (each sometimes referred to individually as
"Party" or collectively as "Parties") hereto agree as follows:
1. SCOPE OF RESEARCH
1.1.CRO Obligations. CRO agrees to undertake and use all reasonable efforts to
conduct certain specified research for Company (the "Study"). The scope and
operating budget for the Study is set forth in Exhibit A attached to this
1.2. Company Obligations. Company agrees to undertake and use all reasonable
efforts to supply CRO with sufficient information and materials in a form that
will allow CRO to perform the Study. Supply of information and materials by
Company to CRO will be governed by the terms of this Agreement and of a
material transfer agreement in substantially the form of Exhibit B attached to
this Agreement (the "Material Transfer Agreement"). CRO understands and agrees
that materials supplied under the Material Transfer Agreement are experimental
in nature, are not for use in humans, and are provided As-Is.
2.1. Study Budget. For CRO's services hereunder, including, without limitation,
use of CRO's laboratories, facilities, equipment and personnel, including the
portion of Xx. Xxxxx'x time required to oversee the Study, Company will pay CRO
according to the operating budget set forth in Exhibit A.
2.2. Schedule of Payments. Company will pay all compensation for work under the
Study directly to CRO. The Parties anticipate that work under the Study will
begin on or about October 1, 2001, and end 30 days later. The date such work
under the Study actually begins is hereinafter referred to as the "Study
Initiation Date." Payment for work under the Study will be made in 2
installments, beginning on the Study Initiation Date, as described in Exhibit
A. The Company shall have no obligation to make any other payments to CRO.
3.1. Definition; Prompt Disclosure. CRO shall disclose to Company promptly,
fully and completely, together with all data and information relating thereto,
all inventions, improvements, modifications, discoveries, products, compounds,
compositions of matter, apparatus, methods, formulae, processes, computer
software programs, databases and trade secrets, whether or not patentable,
copyrightable or protectible as trade secrets, that are made or conceived or
first actually reduced to practice by CRO personnel, either alone or jointly
with others, in the performance of the Study (the "Inventions").
3.2. Ownership of Inventions. All Inventions and any patents, patent
applications, copyrights and trade secrets relating thereto, conceived and/or
first actually reduced to practice in the performance of the Study are the sole
and exclusive property of Company, and CRO hereby assigns any rights it may
have in such to the Company.
3.3. Patent Protection. Company, at its own expense, may file and prosecute
applications for patents covering such Inventions as Company deems appropriate.
3.4. Reasonable Assistance. CRO agrees to give Company all reasonable
assistance requested by Company in preparing, prosecuting, maintaining and
defending any patent, copyright, trademark or other statutory protection for
Inventions, at Company's expense. CRO agrees to cause to be executed all
assignments and other instruments and documents that Company reasonably
considers necessary or appropriate to carry out the intent of this Agreement.
4.1 Obligation of Confidentiality.
a. CRO acknowledges that as a result of this Agreement, CRO may acquire
information, materials and knowledge about Company or its activities that are
confidential and proprietary (the "Proprietary Information"). CRO agrees, on
behalf of itself and its personnel, to hold in confidence Proprietary
Information which is identified as such in writing (or, if provided orally,
where notice of the confidentiality of such information is provided in writing
within thirty (30) days), and not to directly or indirectly disclose, publish
or use, for the benefit of itself or any third party, except in carrying out
the Study or as otherwise expressly permitted in writing, any Proprietary
Information without first having obtained prior written consent to such
disclosure or use.
b. For purposes of this Agreement, "Proprietary Information" is deemed to
include, but is not limited to, information about the business of Company or
the business of any parent, subsidiary, affiliate, customer or supplier of
Company or any other party with whom Company agrees to hold the information of
such party in confidence, including but not limited to Inventions, trade
secrets, research and development plans, marketing plans, product plans,
business strategies, financial information, forecasts, personnel information
and customer lists.
c. This obligation of nonuse and nondisclosure will not extend to Proprietary
(i) Which can be demonstrated to have been within CRO's legitimate possession
prior to the time of disclosure by Company to CRO;
(ii) Which was in the public domain prior to disclosure by Company to CRO, as
evidenced by documents which were generally published prior to such disclosure;
(iii) Which, after disclosure by Company to CRO, comes into the public domain
through no fault of CRO; or
(iv) Which is disclosed to CRO by a third party having legitimate possession
thereof and the unrestricted right to make such disclosure.
4.1 Confidentiality Agreements for Employees and Consultants. CRO shall
obtain from each of its employees, and any consultant(s) retained by CRO in
the course of performing the Study, a written agreement obligating such
person to comply with the provisions of this Section 4 as well as the
disclosure provisions of Section 3. CRO agrees to provide copies of such
agreements to Company on request.
4.3 Obligations of Third Parties. Even if Company consents to the disclosure of
Proprietary Information to a third person pursuant to Section 4.1.a., CRO shall
obtain from each such person, prior to disclosure, a written agreement placing
on such person a corresponding obligation of confidentiality regarding the
Proprietary Information disclosed, on substantially the same terms set forth
4.4. Return of Materials. If Company so requests, on the expiration or
termination of this Agreement, CRO shall promptly return any Proprietary
Information, materials and other property, including all copies or
reproductions thereof, delivered to CRO and relating to the Study.
5. REPORTS, ACCESS AND PUBLICATION
a. Final Report. Within thirty (30) days after the end of the Study or
termination of this Agreement, CRO will provide Company with a report detailing
the full results of the work conducted by Xx. Xxxxx and/or her associates under
5.2. Access. CRO agrees that Company will have access, at any reasonable time
during and after the expiration or termination of this Agreement, to all data
and results of CRO's work concerning the Study conducted during the term of
this Agreement. In addition, Company representatives will be entitled to visit
CRO from time to time on a reasonable basis to observe the progress of the
Study and discuss the same with Xx. Xxxxx and other representatives of CRO.
5.3. Publication and Dissemination.
CRO may not publish and disseminate information relating to various findings
made during the Study.
6. TERM AND TERMINATION
6.1 Term. This Agreement will become effective on the date first stated above
and will continue in effect for two (2) years from the Study Initiation Date.
6.2 Renewal. The Parties may renew the Agreement on the same nonfinancial terms
and conditions set forth herein, with the written consent of each Party. The
budget for any additional term(s) shall be negotiated in good faith by the
6.3 Termination. Either Party may terminate the Agreement on sixty (60) days
6.4 Termination on Breach. Either Party may terminate the Agreement in the
event of a material breach of the Agreement by the other Party, if such
material breach has not been cured (if such is capable of cure) within thirty
(30) days after written notice.
6.5 Payment on Termination. In the event of early termination of this
Agreement, CRO will stop incurring costs pursuant to the Study, effective as of
the date of termination. Final payment by Company will be prorated so that the
total payment to CRO upon early termination will be equal to the total payment
to CRO for the full term of work under the Study pursuant to this Agreement, as
set forth in Exhibit A, multiplied by a fraction, the numerator of which is the
number of days between the Study Initiation Date and the date of termination,
and the denominator of which is 30 days, except that should CRO incur
obligations which cannot be prorated, CRO shall be entitled to receive
reimbursement for such non-proratable obligation(s) in the final payment. CRO
will not incur more than an aggregate of $5,000 in non-proratable obligations
without the prior written consent of Company.
6.6. No Waiver. Termination of this Agreement for any reason will not be
construed as a waiver by any Party of any of its rights, claims, (including
claims for damages) or obligations, including obligations of disclosure
pursuant to Section 3 and nondisclosure and nonuse pursuant to Section 4, that
have accrued up to and including the date of termination.
7. USE OF NAME, TRADEMARK OR TRADE NAME.
Neither Party will have the right to use the name, trademark or trade name of
the other, directly or indirectly, in conjunction with any product, promotion
or publication, without the prior written approval of the other Party.
Notwithstanding the foregoing, Company shall have the right to use the name,
trademark or trade name of CRO without the prior written approval of CRO in
connection with any filing by the Company with the United States Food and Drug
Administration or United States Securities and Exchange Commission or any other
agency with similar authority in another jurisdiction, in connection with
disclosures made to potential investors or as required by law.
8.1 Amendment and Waiver. No waiver or modification of any of the terms of this
Agreement will be effective unless in a writing duly executed by both Parties.
No waiver by either Party of a breach of any covenant of this Agreement or a
default hereunder will be deemed a waiver by such Party of a subsequent breach
or default of like or similar nature.
8.2 Assignment. This Agreement will be binding upon and inure to the benefit of
the Parties hereto, and their successors, heirs and assigns. Other than in a
transaction or series of related transactions involving the merger, acquisition
or sale of all or substantially all of the assets or stock of Company, Company
will not have the right to assign this Agreement without the prior written
consent of CRO, which will not be unreasonably withheld. CRO will not have the
right to assign this Agreement without the prior written consent of Company,
which will not be unreasonably withheld.
8.3 Severability. If any provision of this Agreement is held unenforceable or
in conflict with applicable law, then such provision will be excluded from this
Agreement. The balance of the Agreement will be interpreted as if such
provision were so excluded and will be enforceable according to its terms.
8.4 Force Majeure. The Parties will not be liable for failure or delays in
performance hereunder due to fire, explosion, breakdown of plants, lockout,
labor disputes, casualty or accident, lack or failure of source of supply of
labor, raw materials, power or supplies, acts of God or the public enemy,
interference by civil or military authorities or any other cause beyond the
reasonable control of the Party in question.
8.5 Notices. Unless otherwise provided, any notice required or permitted to be
given to a Party pursuant to the provisions of this Agreement will be in
writing and will be effective and deemed effectively given to such Party under
this Agreement on the earliest of the following: (a) the date of personal
delivery; (b) one (1) business day after transmission by facsimile or
telecopier, addressed to the other Party at its facsimile number or telecopier
address, with confirmation of transmission; or (c) three (3) business days
after deposit with an express courier for international deliveries. All notices
not delivered personally or by facsimile will be sent with fees and/or other
charges prepaid. All notices will be properly addressed to the Party to be
notified at the address set forth below or at such other address as the Party
may designate by ten (10) days advance written notice to the other Party.
Biocheck: Xxxx Xxxx, Chairman and CEO
000 Xxxxx Xxxx
AngioGenex: W. A. Garland, COO
000 0xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 000000
With Copy to: Xxxxxx Xxxxx
Xxxxxxx, Del Deo, Dolan, Griffinger & Xxxxxxxxx
Xxx Xxxxxxxxxx Xxxxx
Xxxxxx X.X. 00000-0000
8.6 Entire Agreement. This Agreement, together with all the Exhibits hereto,
constitutes and contains the entire understanding between the Parties with
respect to the subject matter hereof and supersedes all previous
communications, representations, understandings and agreements, either oral or
written, between the Parties or any official or representative thereof with
respect to the subject matter of this Agreement. It is expressly understood
that no other inducements, either oral or written, have been made to the
Parties to enter into this Agreement other than the terms hereof.
8.7. Independent Contractors. For purposes of this Agreement and all services
to be provided hereunder, the Parties are, and shall be deemed to be,
independent contractors and not agents or employees of the other Party. The
Parties shall have no authority, and shall not give the appearance of having
any authority, to make any statements, representations or commitments of any
kind, or to take any action which would be binding on the other Party, except
as may be expressly provided for or authorized in writing.
8.8. Dispute Resolution. Any and all claims, disputes or controversies (except
for intellectual property issues) arising under, out of, or in connection with
this Agreement, which have not been resolved by good faith negotiations between
the parties, will be resolved by final and binding arbitration in San Mateo
County, California under the rules of the American Arbitration Association then
in effect. The arbitration will be conducted by a single arbitrator, selected
in accordance with such rules, who is knowledgeable in the general area of
pharmaceutical research and development and in the specific area of corporate
sponsored research projects. The arbitrator will render a written decision in
accordance with the governing law stating his or her reasons therefor, and will
render an award within three (3) months of the request for arbitration.
Judgment upon the award rendered by the arbitrator will be final and binding on
both parties and may be entered in any court of competent jurisdiction.
8.9 Injunctive Relief. The Parties recognize and agree that remedies at law for
breach of the provisions of Sections 3 and 4 of this Agreement will be
inadequate and that the non-breaching Party shall, in addition to any other
rights it may have, be entitled to injunctive relief.
8.10 Survival of Rights and Obligations. The rights and obligations of the
Parties pursuant to Sections 3, 4, 5, 7 and 8 of this Agreement will survive
and continue after any expiration or termination of this Agreement and will
bind the Parties and their legal representatives, successors and assigns.
8.11 Counterparts. This Agreement may be executed in counterparts, each of
which will be deemed an original, and all of which together will constitute one
and the same instrument.
8.12 Governing Law. This Agreement shall be governed by and construed under the
internal laws of the State of California, USA. The Convention on Contracts for
the International Sale of Goods shall not apply.
IN WITNESS WHEREOF, the Parties hereto have affixed their signatures as of the
date written above.
BIOCHECK ANGIOGENEX, INC.
XXXX XXXX W. A. GARLAND
CHAIRMAN AND CEO COO
List of Exhibits
Exhibit A: Work Plan Including Budget and Schedule of Payments for Research
Exhibit B: Material Transfer Agreement
EXHIBIT A. WORK PLAN
Antibodies and authentic standard of the Id proteins will be provided by
Biocheck will design an pilot assay appropriate to the specific properties and
characteristics of the Id proteins, fortify plasma and serum with Id standards
and determine the limits of quantitation of the pilot assay at an RSD (found
minus added/added) of 20% at the lower limits and 5% at the upper limit of
Biocheck will then use the pilot assay described above to analyze
representative control and cancer patient samples supplied by Angiogenex, and
report the results.
Study Budget: $20,000
Payment: A $15,000 payment will be made on initiation of the study, and the
remaining amount due paid on receipt of a preliminary report to AngioGenex
presenting results of the study.
MATERIAL TRANSFER AGREEMENT
NAME AND ADDRESS OF RECIPIENT:
Dr. Sinfu Tzeng
000 Xxxxx Xxxx
Xxxxxxxxxx, XX 00000
AngioGenex, Inc. ("AngioGenex") agrees to provide Biocheck, Inc. ("Recipient")
with authentic Id proteins and antibodies to Id proteins (the "Material"). The
Material is proprietary material of AngioGenex, and is provided to Recipient
solely under the following terms and conditions:
1. Material is provided solely for the purpose of noncommercial research use by
Recipient. Recipient agrees not to use Material for any other purpose. Nothing
herein shall be deemed to grant rights under any patent. Material, materials
made using Material, and/or the results of experiments and data derived from
any use of Material will not be used by Recipient for any commercial product or
process or commercial product development effort in any way.
2. Recipient agrees not to transfer the Material, materials made using
Material, and/or the results of experiments and data derived from any use of
Material to any other person or entity without the prior written approval from
an officer of AngioGenex, and without such person or entity entering into a
Material Transfer Agreement with AngioGenex that contains terms substantially
similar to those in this Agreement.
3. Recipient agrees that the Material, materials made using Material, and the
results of experiments and data derived from any use of Material including any
inventions derived using the Material will be and/or will remain the sole and
exclusive property of AngioGenex. At the request of AngioGenex, Recipient will
return all remaining Material and any material made using Material to
AngioGenex. Recipient shall provide assistance, and execute any documents
required to file, maintain, prosecute or enforce any patent for such inventions
and assign all rights therein to AngioGenex, at the expense of AngioGenex.
4. Recipient agrees to keep AngioGenex informed of all uses made of the
Material and any material, results of experiments and data derived there from.
A summary of results of experiments and data generated utilizing the Material
will be provided to AngioGenex in writing at their conclusion.
5. All aspects of the Material and information and materials derived from
Material are considered to be Confidential by AngioGenex. For a period of five
(5) years from the date of this Agreement, Recipient will keep all results of
work with the Material involving confidential aspects, and any other
confidential information related to the Material made available to Recipient by
AngioGenex (hereinafter collectively referred to as "Information"), in strict
confidence. Information shall not be disclosed to any third party without
prior written permission from AngioGenex.
The above notwithstanding, Recipient's obligation of confidence with respect to
Information shall not extend to:
(a) Information which Recipient can demonstrate by written records was known
to Recipient prior to disclosure by AngioGenex, provided such information was
not obtained by Recipient through disclosure by a third party receiving such
information in confidence from AngioGenex; or
(b) Information which is now public knowledge or becomes public knowledge in
the future other than by breach of this Agreement; or
(c) Information which is disclosed to Recipient after the date of disclosure
by AngioGenex by a third party who has the right to make such disclosure
without violating the terms of this Agreement or any other agreement of
confidence or secrecy with AngioGenex.
6. Recipient understands and agrees that Material is experimental in nature
and that it is provided WITHOUT WARRANTY OF MERCHANTABILITY OR FITNESS FOR ANY
PURPOSE AND WITHOUT ANY OTHER WARRANTY, EXPRESS OR IMPLIED, AND WITHOUT ANY
REPRESENTATION OR WARRANTY THAT THE USE OF THE MATERIAL WILL NOT INFRINGE ANY
PATENT, COPYRIGHT, TRADEMARK OR OTHER RIGHT OF ANY OTHER PARTY.
7. Recipient agrees that in no event shall AngioGenex be liable for any use of
Material by Recipient and that Recipient will defend, indemnify and hold
AngioGenex, its officers, directors, employees and agents harmless from any
loss, claim, damage or liability of any kind which may arise from or be
connected with any use, handling or storage of the Material.
8. Recipient agrees to comply with all Government guidelines which are
applicable to the Material, including biosafety procedures.
9. This Agreement is not assignable, whether by operation of law or otherwise,
without the prior written consent of an officer of AngioGenex.
10. Recipient agrees not to submit to a publisher or in any other way disclose
or publish the results of any experiment or other use of Material which
involves confidential aspects without the written consent of an officer of
AngioGenex, and to acknowledge the contribution of AngioGenex scientists, if
appropriate. Such consent will not be unreasonably withheld.
11. Recipient recognizes and agrees that remedies at law for breach of the
provisions of this agreement by Recipient will be inadequate and that
AngioGenex shall, in addition to any other rights which it may have, be
entitled to injunctive relief.
12. By receipt of Material and/or execution of this Agreement, Recipient
acknowledges that Material is proprietary material of AngioGenex and accepts
all of the terms and conditions of this agreement.
If the foregoing terms and conditions are acceptable, please so indicate by
signing in the space provided below and returning on fully signed copy of the
Agreement to AngioGenex, retaining the other copy for your records.
BIOCHECK, INC ANGIOGENEX, INC.
Xxxx Xxxx W. A. Garland
Chairman and CEO Chief Operating Officer